Notes and thoughts on Montana's election results

MH will resume the usual cultural coverage next week, once the election results have been talked about.

Congratulations to the star of the night:

That is to say, Tim Fox, who became the first Republican elected Montana's Attorney General since Marc Racicot in 1988 (and really, since Racicot jumped parties to run as a Republican, we may have to dig back even further to find the last life-long Republican elected to that office.) As I have previously noted, Fox is to be commended for his tenacity in pursuing this position over two consecutive bruising election cycles. Sheer willpower is one of the most important traits that someone involved in politics can have, and Fox has proven he has it.

What goes around, comes around:

While things could still change as voting continues in Yellowstone County, Sen. Gary Branae appears to have been defeated by Elsie Arntzen in SD 27 here in Billings. I'm putting this particular Senate race right up front because some things deserve to be remembered, and the back story is one that probably won't get any mention in the mainstream press.

The Democratic Party richly deserves to lose Branae's seat, on a moral and ethical level. He won that seat quite narrowly in 2008, and only because some of the worst personal (and illegal) campaign attacks that Montana has seen in state legislative races.

His opponent, Jack Sands, who is as fine a man as one is likely to meet, had spent time as a public defender, and as such, had represented some unsavory characters in his day. That's the job of a public defender (I pointed this out when being critical of this particular line of attack on Supreme Court candidate Ed Sheehy this year.)

In the 2008 election, the Montana Democratic Party made extensive phone calls to homes in the district claiming that Sands was mixed up with drug dealing. It's not illegal to lie in political materials, of course -- the illegal part was that the callers wouldn't identify themselves, and the caller ID was routed through Romania (yes, that Romania.) Some detective work tracked it down. The hits kept coming, and Branae's weak-kneed and equivocating "protests" about the calls came very late and very timidly -- and only after the damage was fully done.

Control of the Senate was potentially at stake (Republicans gained control anyway, in spite of the huge Democratic wave in 2008 -- Montana was the only state in which the GOP flipped control of a legislative body that year), but more importantly, Democrats surely wanted to keep a talented, moderate Republican lawyer from getting his first toehold into Montana political life -- wouldn't want him to end up as Attorney General or on the state Supreme Court, would we? There are ways for candidates to get word quickly and unequivocally to state parties, telling them they want negative attacks to stop. The party doesn't have to listen, but if the party knows the candidate is going to make a public stink, they will stop. So Branae has absolutely no excuse for not having stopped these attacks, and the Democrats had no excuse for using such dirty tactics.

It is that sort of highly personal smear that discourages good people from running for office. It is sort of like standing there, slapping a tire iron into one's hand, saying -- "nice little reputation you have there... be a shame if anything were to happen to it. You really sure you want to run for office?" One hopes that Branae goes down to defeat in the final count, and that a take-home lesson will be learned -- it is indeed possible to go much too far in a campaign, and what goes around...

Anyway, it was a bit of delicious schadenfreude to see that Branae appears to be losing to one of the best retail politicians that Yellowstone County Republicans have: Elsie Arntzen.

Steve Daines comes through:

We knew he would, but it is still gratifying to see Steve Daines getting ready to head off to Washington as Montana's next U.S. Congressman. He will do us proud and will stay out of any serious trouble -- personally or politically -- leaving him in good position to make a run at either the governor's seat or a U.S. Senate seat in the future. He will be formidable. Right now, our front-line "bench" consists of Daines and Fox, and both have proven their political chops.

Predictions gone bad:

I only missed two calls in my predictions (unless Sandy Welch gets a recount and prevails against Denise Juneau in the State Superintendent race -- I hope I get to be wrong about that one.) Unfortunately, they were the two most high-profile races in Montana -- the U.S. Senate race and the governor's race. Two factors were key:

1. I overestimated Mitt Romney's margin of victory in Montana. While I didn't expect the kind of 40 point victory he got in Wyoming, I expected it to be closer to 20 than to 10. Instead, Romney barely got a double digit win in Montana. The anti-Obama undertow I had expected thus didn't materialize here in Montana, just as it didn't materialize anywhere else in the country. There were bold predictions that Obama would get less than 30% of the vote in Oklahoma and perhaps Arkansas this year, but he easily broke 30 percent in both places. Just an example. Nationally, Romney came up about 3 million votes less than what John McCain managed against Obama in 2008. Very sorry performance.

2. The Libertarian factor bit hard. Add up the Libertarian vote and the Republican vote in both the governor's race and the U.S. Senate race, and there would have been a narrow but clear victory for the Republican candidates. The Tester supporters knew exactly what they were doing, and how to do it. It was sleazy, but it was brilliantly played. The only thing that could have saved the day would have been a personal barn-storming tour by Ron or Rand Paul, urging Montana Libertarians not to be stupid. There is a saying in surgery -- "the enemy of good is better." In a surgical setting, it means that once you have done something right, you don't try to improve on it by cutting just a little more, throwing in just a few more sutures -- more often than not, you will end up with unintended consequences that you won't be happy with.

Libertarians and Constitution Party people are like that in many ways. What they advocate for can often be arguably better than what Republicans deliver, but what really happens is that one gets neither "better" nor "good," but rather, "bad." You don't often see Green Party people splitting the Democratic vote in close elections. They save their posturing for places where the Democrat is sure to win.

One wishes that conservative purists would learn that same lesson.

By no means would Rick Hill or Denny Rehberg have received all of those votes in a two way election. But they would have received the lion's share, and that might have made the difference.

Anyway, I was wrong about these two races, and I feel bad for both candidates. They gave it their all, and we were lucky to have them running.

Initiatives -- go figure...:

So the same Montana electorate that voted for pro-choice Jon Tester and Steve Bullock passed a parental notification initiative for abortion in minors by an overwhelming margin. They voted to uphold the legislature's restrictions on medical marijuana. They voted for pro-Obamacare Tester and Bullock, but also voted to prohibit an individual mandate in health insurance in Montana. They voted for the party of amnesty, and yet they also voted overwhelmingly to restrict state benefits going to illegal aliens. Of course, they also voted not to give constitutional rights to corporations, which leads to the conclusion that Montanans have a tendency simply to vote in favor of just about any ballot initiative that comes in front of them. Hm. Maybe we should collect signatures for a ballot measure banning the Democratic Party.... Just kidding!

Montana Supreme Court

It appears that Laurie McKinnon will win election to the state Supreme Court, for which I am glad, based on what I know. Just having a former District Court judge on the bench will help, as long as she doesn't drink the judicial Koolaid in Helena. Montana's Supreme Court is consistently at or near the top of the list when it comes to the rate of overturning lower court decisions. I remember chatting once with a former Supreme Court justice who had previously been a district court judge. He noted that the other justices who hadn't been lower court judges frequently need to be reminded that appellate courts cannot make new determinations of fact -- that they can only rule on legal and procedural matters and must accept the factual findings of the lower court as binding.

I hope that McKinnon will have the strength of character to stand up -- persuasively (since she will be only one vote) -- on the Supreme Court on behalf of her former fellow District Court judges.

It is critical not just that we have Supreme Court members who think fairly and sensibly. They must also be leaders and be persuasive. Those who don't lead end up following. Consider the other Supreme Court "race" this year, in which Justice Morris ran unopposed for re-election. There were great hopes for Morris, since he had clerked for Chief Justice Rehnquist. His subsequent career on the Montana Supreme Court has, by all reports, indicated that he didn't learn anything substantive from Rehnquist -- or forgot it as soon as he arrived on Montana's high court. If there are any examples of Morris issuing stinging and intellectually persuasive dissents to controversial Montana Supreme Court decisions, I've not heard of them.

More on Monday, when we will talk about the Montana PSC situation as part of our energy coverage.

$500,000 in sketchy money greasing a Montana election (no, it's actually Democratic money, and it's in the Senate Race)

I commented several months ago about the silliness that is involved in every Montana campaign season regarding campaign finance regulations and other picky campaign rules. Are other states as filled with the same kind of tedious sniping about who gave what and whose lettering on which signs are the proper size? For the sake of the Republic, I hope not.

This season, there was a major blow for sanity when a judge struck down Montana's laws limiting the contributions that campaigns could receive in this state. I understand that there are a lot of people who think that the problem with campaigns today is that there is too much money and that the answer to this "problem" is to restrict the size of donations and make picky regulations that require full-time professionals to keep up with them. To which I respond: over a four year period Montana's GDP is roughly $150 billion -- is it really unreasonable to spend three or four million dollars over that same period on a campaign that decides who the governor will be? I don't think so. Montanans probably spend more than that in a single month paying their cable TV bills. Is a month's worth of reality TV really just as important as who heads up our state's executive branch? To ask the question is to answer it.

In another post back in July, I had this to say:

Outside organizations have always been able to pour money into races, and this election cycle is no exception...

Furthermore, since outside groups can’t coordinate with the candidate, the candidate has no ability to control the message -- increasingly, the truly greasy things are done by outside groups so the candidate can shrug his shoulders and say “I had nothing to do with it -- in fact, I’m not even allowed to talk to them.” There is always mud slung in campaigns, but when big money is forced into outside groups, the candidates don’t have to take responsibility for any of it.

And indeed, there has been a great illustration of this recently. Rick Hill's gubernatorial campaign accepted a $500,000 donation from the Montana Republican Party during the period of time when a judge had ruled that it was legal to do so. Another judge has subsequently (and inexplicably) prohibited Hill from spending that legal money.

Consider, however:

First, that donation leveled the playing field between Hill and Bullock when it came to money. Hill and Bullock have matched each other practically dollar for dollar when it comes to raising money here in Montana in the ridiculously low amounts required by state law. Bullock has, however, outstripped Hill when it comes to raising out-of-state money. Don't think that this is because Democrats all over the country just happen to know about Bullock and are itching to write him $630 checks right and left. Such things are organized and bundled by professional fundraisers, and the money tends to come from wealthy donors who write similar checks to Democratic candidates all over the country. Big money, in other words.

The $500,000 that Hill received came from similar sources on the Republican side, just in a different way.

Second, note that the money came from Republican Party organizations -- the Montanan Republican Party and ultimately the Republican Governor's Association. Contributions to political party organizations, I would point out, are reportable and the information is available to the public, if you care about such things. I really don't, but Democrats make a big noisy deal about how important it is, so I mention it.

I happen to be old-fashioned on the subject of political parties. As a Burkean, I think political parties play a moderating and mediating role because they have an interest in promoting consensus candidates and issues that can win elections at every level in a state -- and not just in one election cycle, but in the next, and the next... When parties can control the purse strings to a certain extent, more extreme candidates are unlikely to get as much support. As the financial power of political parties has been increasingly hamstrung by election laws, our elections have only gotten uglier and more negative.

Third (and here I reach the main point of this post), note that an identical amount -- $500,000 -- is being spent by a Jon Tester-friendly group on a sleazy campaign tactic: running ads urging voters to choose the guy they style as the "real conservative" in the U.S. Senate race in Montana -- the Libertarian Party candidate. Since every "real conservative" who is persuaded to vote Libertarian is a voter who has been peeled away from Denny Rehberg, the motivation is clear, and the tactic is cynical, to say the least.

Leaving aside the question of whether fringe libertarian candidates in Montana are actually more conservative than mainstream Republicans in Montana (in my experience they are not) "the ad is funded by the Montana Hunters and Anglers Leadership Fund, a political-action committee financed earlier this year by the League of Conservation Voters, a leading conservation and environmental group backing Tester."

Keep in mind that the Libertarian Party advocates the private ownership of wildlife, the privatization of all public lands, National Parks, etc. Add to that the fact that no-one (especially the Montana press) seems to have really done much "fact-checking" on who this Libertarian guy really is. Is he the kind of person that the folks running these ads would choose to manage Montana's wildlife and public land? Does the "Montana Hunters and Anglers Leadership Fund" seriously want public land to be privatized and wildlife to be privately owned? Please. This tactic is completely legal (although we wonder where all of that money is ultimately coming from, given Democratic preaching about "transparency" -- have they released a full list of donors and amounts?)

It is legal, but it is also completely cynical in its approach to our electoral system -- and I would predict that not a few Montanans will view it with disgust.

For the richest irony of all, Sen. Tester doesn't have to take responsibility for this slimy tactic. Not one bit. After all, he's not spending the money, and isn't allowed to coordinate with the group. (Wink, nudge.)

By contrast, the $500,000 that Rick Hill's campaign received from the Montana GOP is money that would be spent on ads ending with the words "I'm Rick Hill, and I approved this message." Would the Tester campaign take out a message urging people to vote for the Libertarian candidate and have Sen. Tester finish it off with "I'm Jon Tester, and I approved this message?" I don't think so.

I don't know about anyone else, but I'm sick and tired of ads from groups of unknown origin that tell us to "Call So-and-So and tell him that he's a blithering idiot" -- since the structure of such organizations are built around issue advocacy that make attack ads the way to go. Most candidates would much rather have donations given directly to them to spend as they see fit rather than having "helpful" groups flooding the airwaves, and most big donors would probably rather give their money to a candidate they support rather than to a Super-PAC.

Again, it's all legal, and it should be. People should be able to spend their money however they want, exercising their rights of free speech. But why can't that money go directly to candidates if the donors want it to? Let them spend it, let them take responsibility for the content. That money is going to be spent one way or another in these races -- let's maximize the chances that it will be spent in a way in which candidates will be answering directly for distortions and lies in their own ads.

Rick Hill and the Republican Party are wanting to spend money and take responsibility for the content -- and a hostile judge shut them down. Meanwhile, Jon Tester and the Democrats -- or, excuse me, "independent groups" -- are spending an identical sum on a tactic that subverts a clear and straight-up choice facing Montanans in our U.S. Senate race. I suspect justice will ultimately be served, but it will be thanks to Montana voters siding with Denny Rehberg, and no thanks to certain Montana judges or our state's campaign regulation bureaucracy.

Montana governor's race: Steve Bullock's 11th hour conversion on oil and gas taxes?

We were happy to learn that Democratic gubernatorial candidate AG Steve Bullock has had, at this late point in the campaign, an apparent conversion experience on oil and gas taxes.

In a recent debate, Bullock stated that he did not favor repealing the tax "holiday" by which new horizontal wells pay no taxes for the first 18 months of production. Keep in mind that Democrats opposed this holiday, which makes Montana oil and gas taxes regionally competitive, and that they have proposed legislation to repeal the holiday in pretty much every legislative session since it was first instituted in the 1990s.

Let's pose a hypothetical here: suppose by some miracle, Democrats retake control of both houses of Montana's legislature sometime in the coming 4 years. And suppose that Bullock is elected governor. Are we to believe that Bullock would veto legislation to raise oil production taxes if a Democratic legislature passed it?

Montana voters who want to promote oil and gas production in our state need to decide whether they trust Bullock's sudden enlightenment on this subject. Bullock, of course, doesn't really need to worry about such matters, since the Montana legislature would appear to be safely in Republican hands for at least the next couple of cycles. Oil and gas taxes aren't going up as long as the GOP is in control of the legislature, so he can safely say pretty much whatever he wants to about this.

We do, however, already know how Bullock votes on the state Land Board when it comes to oil, gas, and coal development issues, and he is definitely to the left (to the extent that left and right have meaning in this context) of his fellow Democrat, Gov. Schweitzer. If you thought Gov. Schweitzer dragged his feet on traditional energy development even while saying all of the right things, then you will likely be even more unhappy with Steve Bullock as governor. If you thought that Gov. Schweitzer got it just about right, well... you'll still be unhappy with a Gov. Bullock.

In that same debate, Rick Hill pointed out that he was working as an adviser for Gov. Racicot's office when the concept of the oil and gas tax holiday was being developed. Bullock snarked back that Hill was trying to "take credit for the oil and gas boom."

Not really, Mr. Attorney General. The point is that when voters are trying to decide whose promises to believe on this issue, they will look at past behavior and past associations. There is nothing in Rick Hill's record and associations that would indicate anything but that he will promote a safe and responsible development of traditional energy sources like oil, gas, and coal. There are disturbing indicators in the Bullock record and associations that point toward obstructionism and toward favoring the positions of radical environmentalists.

Voters will have to decide what they want.

Billings Gazette causes emergency room visits for coronaries to soar -- endorses Rick Hill

Well, shivver me timbers, but I was wrong. Big time. Last week I predicted Gazette endorsements for Democrats in both of our high-profile races in Montana (for governor and U.S. Senate.) That prediction was based on past endorsement patterns and what has seemed like general editorial attitudes that lean toward AG Bullock and Sen. Tester (and against former Cong. Hill and current Cong. Rehberg.)

But the Gazette endorsed Rick Hill, shocking me, and doubtless many others. (The headline is, of course, a joke -- but there must have been more than a few stunned Republicans staggering around on Sunday morning -- and Democrats having chest pain from sudden attacks of heartburn.)

It isn't the first time I've been wrong and won't be the last. I'm happy to be wrong in this way (just as I will be happy if it turns out that I'm wrong that Gov. Romney was always destined to be a sure general election loser -- I'm actually beginning to believe that there is an outside chance at sanity prevailing in the Presidential race.)

The Gazette endorsement was far from a tepid one. In fact it was downright enthusiastic, which made it all the more remarkable. Just as with other GOP endorsements in this electoral season, the prose doesn't read to me quite like most Gazette editorials. The Romney endorsement in particular was so unlike most Gazette editorials that I wondered aloud to the beloved over breakfast whether the publisher had written it himself rather than having one of the editors write it. But maybe it's more in how I'm reading things than in how they were written...

The cynical, tinfoil-hat-wearing gnome sitting on my left shoulder whispers in my ear that this is a sign that polling data is looking even more favorable for Hill and other Republicans in Montana than we may have thought. Are we looking at a comfortable 6 or 7 point spread for Hill in November? Let's hope so. The pocket-protector wearing gnome on my right shoulder whispers in my ear that I need to stop being paranoid and stop imagining that there are gnomes on my shoulders whispering contradictory things to me.

Anyway, I am now doubling down on my prediction that the Gazette will hold true to its Democratic convictions in the most important race of the season in Montana and endorse Sen. Tester. If I am wrong, I will happily (exuberantly, even) publish a post entitled "I WAS REALLY, REALLY WRONG," and even begin cautiously to harbor hopes that a new editorial endorsement era has arrived...

Coal state Democrats -- does Montana follow the pattern?

A lot of coal state Democrats are running from President Obama and his stances, which can only be reasonably described as hostile to the coal industry.

Some (but by no means all) high-profile Montana Democrats have not tended to follow that example. Gubernatorial candidate Steve Bullock has broken with his fellow Democrats on the land board on a number of occasions, voting against coal development. Senator Tester has likewise been pretty quiet about President Obama's EPA, and indeed has doubled down in defending EPA policies that other coal-state Democrats have condemned as unreasonable. As we noted before in our "between a frack and a hard place" piece, one plausible explanation for Montana Democrats being timid about going all out for coal is matter of just who is writing the checks to their campaigns.

As a Charles Johnson article noted today, Steve Bullock's lead in fundraising this cycle is completely a function of his high percentage of out-of-state donors. As always, Johnson's article is good, straight reporting. It is interesting that the Helena Independent Record's headline emphasizes Bullock's money lead, whereas the Billings Gazette headline emphasizes the fact that his lead results from out-of-state money. Given that the Gazette caused near-coronary events in Republican households across their readership area by endorsing Republican Rick Hill in Sunday's paper (is Hill poised for a more comfortable victory than we have been led to believe?), perhaps this headline is meant to give a little justification for that endorsement.

Getting back to money, Bullock's lead in fundraising demonstrates just how a dependence on out-of-state money puts Democrats in red states like Montana in a bind. Public sentiment is strongly in favor of natural resource development here in Montana -- and not just with Republicans.

And yet, when red state Democrats toe the environmentalist line insufficiently, they run the risk of losing all of that out-of-state money from liberal activists around the country who want some return on their investment.

Red state Republicans and blue state Democrats have no such conflict: any out-of-state conservative donor, for instance, will tend to have similar concerns as the average (right-of-center) Montanan on things like energy development.

The Missoulian and Rick Hill -- an old-fashioned "Montana headline"

Wouldn't it be nice if all headlines were either accurate -- or if not, at least unintentionally funny like the one at right? When I started Montana Headlines some years ago, I arrived at the name in part because I had been dismayed by some of the headlines that appeared in my local Billings Gazette. At times, I felt that even when a news article was fair and balanced (if I may use the term), the headline would often be skewed. This is important because it colors the way an article is read, and to someone taking a quick glance at the paper who doesn't have time to read the whole article, the headline is the takeaway message.

There was a doozy of an example in a recent Charles Johnson article posted at the Missoulian:

Rick Hill has been campaigning to be Montana's governor for years

When the editors write a blazing headline like that, I'm thinking that I'm going to learn that Hill has been on the road for at least the last 4 years. No, the truth is more prosaic than that. Johnson wrote this in the body of the article: "For nearly two years – since the Monday following the November 2010 election – Rick Hill has been running for governor"

Out of a lengthy, factual, and even-handed feature article (would we expect anything else from Johnson?) about Rick Hill, the editors came up with that headline? For starters, it isn't even true. Most reasonable people would expect at least two full years (i.e. more than one) to have gone by in order to claim that someone has been doing something "for years." Most reasonable people would in reality probably expect more than two, but we can give the benefit of the doubt.

Today, beginning the slog of fundraising and campaigning shortly after the last election is pretty standard for a major office like governor. It hasn't been common in Montana in the past, but we'd best get used to it, and it certainly isn't newsworthy.

This doesn't mean I like long campaigns, mind you. Here is what I wrote back in February of 2007:

Political Armageddon comes to Montana: Yes, it's true. Monica Lindeen has started campaigning for the State Auditor position 3 1/2 months after the last election. You heard it right -- State Auditor. Interminable campaigns are annoying enough when it is for offices like, well, the President of the United States of America. But are Montanans really going to have a stomach for this?

I don't recall who the Missoulian endorsed for State Auditor in 2008, but I'll bet that just like the Billings Gazette did, the Missoulian editors endorsed Lindeen. Were there articles in the Missoulian where the headlines screamed that Lindeen had been campaigning for State Auditor "for years?" Doubt it.

(Update: the headline online has changed to "Governor's race: Rick Hill seeks major economic, regulatory reforms.” I don’t know what the final print edition headline was. Maybe the headline I saw was just the temporary work of a lowly night-shift editor. But it was around long enough to be aggregated.)

Coal development in Montana and surface rights

There were recently a couple of articles that highlight some competing interests regarding coal mining in Montana. The first is a Daily Interlake editorial decrying the "war on coal" by the EPA, spurred by the closing of a PPL Montana coal plant, with ownership citing EPA regulations as the proximate cause of rendering the plant unprofitable to keep open.

The story is a familiar one -- the plant would have to be refitted to the tune of $38 million in order to meet current regulations. As someone who breathes the air in this part of the Yellowstone Valley and who has experienced some respiratory problems that were new to me until I moved here, I confess that I would want to know a bit more about just how out-of-date the plant is with regard to emissions before completely dismissing the EPA's standards as unreasonable.

Still, it seems inescapable that the editors are correct that the current bunch at the EPA have "declared war" on coal.

Rick Hill landed a nice body blow to Steve Bullock in the debate the other night on this very topic:

Hill used his question to attack Bullock’s record on coal development, asking why Bullock failed to join 24 state attorneys general from coal-producing states this year when they challenged new Environmental Protection Agency rules Hill said would harm coal-fired power plants.

It seems as though Bullock has a problem choosing which battles to fight. He could tilt at windmills by trying to take down Citizens United singlehandedly. But he couldn't be bothered to file a brief against Obamacare in spite of that law's unpopularity in Montana, and he wouldn't join in challenging EPA coal regulations in spite of his claim to support coal development.

I digress, however. The other article that was interesting to note was this piece in the Washington Post regarding the conflicts that some Montana ranchers are having over coal development.

The strip mining of coal is, without a doubt, the most unpleasant kind of energy resource development to have in one's backyard, since its footprint is so large. It is not a permanent footprint, given modern regulations about the restoration of the soil and landscape, but for a given generation, it probably feels like forever while it goes on.

The fundamental problem, however, is the American system of decoupling surface rights from mineral rights. I am fortunate to own the rights on my own ranch, but not all ranchers are blessed in that way. One thing is certain (at least to me) -- nothing, and I mean nothing, should be allowed to compromise the long-term viability of agricultural activity on anyone's land. Oil wells will eventually run dry, coal beds will be stripped, natural gas will be bled off. But as long as the rain falls and the sun shines, and as long as the soil is pure and ground water is uncontaminated, agriculture can go on -- theoretically forever, if things are taken care of. It is the ultimate renewable resource.

The point here is that while perhaps our legal system shouldn't allow a limitless veto power to surface owners, they should have a powerful say about what mining and drilling happens on land they own -- precisely because they and their descendants will be ranching and farming that land long after the resources beneath the ground are gone. If ranchers are trying to block coal development, it seems pretty clear that they as surface owners aren't being compensated fairly and their concerns aren't being adequately addressed.

While readers of Montana Headlines know that I am pretty bullish on traditional energy development, this is one place where I have to cast my vote with the sometimes curmudgeonly Cattle Queens (and Kings) of Montana.

Steve Bullock and the pipe-dream choice between high-tech and oil/coal

There's not a lot of burning news in the Montana energy world this week that I felt worth commenting on, so how about discussing Attorney General Steve Bullock's recent comments?

He is trying to play the old "high-tech vs. extraction industry" game that Democrats love. Democrats don't want to be accused of being entirely anti-business, and yet they want to keep their base happy, which is largely anti-business in practice. So what to do?

For one thing, talk a lot about alternative energy and all of those ethereal "green jobs" they think could be created if only enough government funding could be thrown at it. I've already expressed my opinion on what I think about trying to force alternative energy technologies into mass production that aren't ready for prime-time, so I won't go on about that.

The other game to talk up is the "we want high tech" thing. Here's Bullock:

There’s no way Montana shouldn’t be leading the nation and being the next Silicon Valley...

Well, duh... who doesn't want high-tech jobs in their states? Name one governor who doesn't want to have "the next Silicon Valley."

A couple of states spring to mind as ones who are making serious strides. Texas for one, and North Dakota for another. Here is an interesting quotation from the latter article:

Doug Burgum, known locally as the godfather of software for building Fargo’s Great Plains Software into a billion-dollar business, told attendees at a conference last week that the absence of “massive socioeconomic problems” makes North Dakota an ideal place for tech companies to grow.

“We have a state with a surplus. We can invest in the future,” Burgum said. “If you’re in Illinois, you are not having this conversation because you’re talking about the possibility of the state actually being bankrupt.”

Exactly. As I have pointed out before, there are two important factors needed to attract companies -- high-tech or otherwise. One is an overall healthy climate for business from a tax and regulatory standpoint, and another is bursting state coffers. To quote myself:

There are those who want Montana to try to attract "green jobs," high-tech industry, or even manufacturing instead of promoting the grubby business of extracting coal, oil, and natural gas from the ground. The reality is that in order to attract business, a state needs a "grub-stake," as the old time prospectors used to call it.

"Only" 25% of state revenue comes from energy in North Dakota, but what that revenue allows for is tax structures that promote other kinds of business development in the state. Broad-based economic growth requires a positive attitude toward business in general, and the North Dakota experience is proving that.

So let's come back to Attorney General Steve Bullock, who unlike the current governor has voted against developing Otter Creek coal. In general, he has made the obligatory symbolic gestures to act like he is supporting natural resource development like coal, oil, and gas, but when it comes right down to it he is far more anti-energy than our current Democratic governor and can therefore be reasonably expected to accomplish even less in terms of energy development -- and Montana is being left in the dust as it is.

Montana does indeed need to continue to look for ways to further diversify our economy, including encouraging high-tech and other non-energy related industries to start or relocate here. Doing so, however, requires a commitment to across-the-board business development, including robust traditional energy development. Think Rick Hill.

Absent that, Bullock and Montana Democrats can indulge in all the pipe-dreams and empty rhetoric they want to about wanting to be "the next Silicon Valley."

As 49 other state governors would say, "good luck, and get in line, bud..."

More campaign finance silliness

Yes, it is a fact of political life that campaigns have to snipe at each other with accusations of political malpractice, of filing the required forms incorrectly, of failing to make the disclosures on yard signs large enough (hint: you still can’t read them from your car as you drive by even when they are the specified size), etc., etc. They have to -- it’s in the official “Campaign Operatives Handbook."

This sort of thing is why summer is called the “silly season” in political campaigns. The sad thing for the public is that as campaigns become interminable, the silly season gets longer and sillier.

Matt Gouras’s AP piece on the Montana GOP lawsuit against AG Steve Bullock lets us know just how turned around things can get during the silly season. It turns out that Bullock was raising money for an “unspecified office” for a long time (still deciding whether to run again for AG or to run for governor.) In fact his website allowed donors to give up to $1200 for 3 months prior to having declared for the governor’s race.

The significance there is that Bullock hadn’t declared for the governor’s race, and could reasonably be assumed to be seeking reelection as AG -- but $1200 is a gubernatorial campaign contribution limit and well above the amount allowed for contributions to an AG campaign. The numbers in the AP story aren’t quite self-explanatory -- the max donation this year for the governor’s race is only $630, which would translate into $1260 only if a candidate successfully wins the primary and can accept another $630 for the general election.

The Montana Commissioner of Political Practices already ruled against the protest, but the Montana GOP has taken the case to court. They have a point -- Dave Gallik, who was Commissioner at the time that the GOP filed their complaint with that office, was a contributor to Bullock’s AG campaign and can reasonably be assumed not to have been an unbiased participant. Adding to the difficulty of weeding this particular garden is the fact that the judges in Helena all know Bullock (Helena is a small town -- no surprise there), and so the case had to be moved to Lewistown, where Judge Wayne Phillips will hear the case.

As to things being turned on their head, Gouras points this out:

Bullock, who has fought in the other lawsuits for more transparency as he seeks to preserve Montana’s campaign finance laws, has argued he did not need to disclose which office he was seeking last year while he was raising hundreds of thousands of dollars.

Indeed, we have had to endure Bullock’s stentorian and moralizing pronouncements on electoral transparency, and now, he claims that the GOP protest has no validity. Silly.

Less convincingly, Gouras intimates that the GOP is also being hypocritical, since "Montana Republican Party attorney Jim Brown has argued in federal court that many Montana campaign finance laws are onerous and unconstitutional.” True enough, but the point that the Montana GOP has made in the past is that campaign finance rules are onerous and cumbersome. In this case, however, they are saying that if we are going to have these onerous rules on the books, then everyone needs to be held to the same standard.

Think of it like this: I often challenge my liberal friends who favor higher taxes to go ahead and pay more in taxes. There is nothing stopping them. You don’t even need to write an extra check. If all Democrats who want higher taxes simply don't claim the exemptions and deductions allowed to them by law, then presto -- they will all be paying the higher tax rates they say they want and the government will have more of the money they say it desperately needs to spend. After the sputtering ends, the reply usually boils down to this: the fact that they advocate higher tax rates for all doesn’t obligate them to pay more voluntarily in advance of such tax rates going into effect. Fair enough.

The same thing applies here. Just because the GOP believes that certain election laws are onerous doesn’t mean that Republicans are obligated to look the other way when Democrats skirt them. If Bullock and the Democrats believe there is nothing wrong with raising large amounts of money without the basic transparency of saying what you’re running for, they should lead the way to change the law.

As has been pointed out here at MH before, Montana’s contribution limits are antiquated and force candidates to spend inordinate amounts of time raising the amount of money that modern statewide races require. In other words, not only should Bullock (like every other candidate for statewide office) be able to raise money without declaring what office he is running for, he should be able to take in contributions as generous as someone is willing to give him. All of the filing and record-keeping absorb huge amounts of time and energy that candidates could better spend doing other things. Some campaign operatives skilled in such arcana might lose their jobs, but there is plenty of work to be had elsewhere. We hear they’re hiring for all sorts of jobs in the Bakken.

Best of all, we citizens would be spared having to hear the nit-picky campaign finance accusations that both parties dutifully hurl at each other during the interminable silly season.

Montana Democrats -- caught between a frack and a hard place

Three recent pieces in the press give an indication of just how and why Montana Democrats are torn over how to approach traditional energy development in Montana.

The first appears to be the account of another local success story in the making. Jan Falstad provides another fine article in the Billings Gazette on Bakken-related business development, this time telling the story of two Montana brothers, Sivert and Richard Mysse, who put their farm-boy know-how to work in developing a new truck for heating fracking fluid. After noticing how many trucks were needed to heat water at a fracking site in the Bakken oil fields, they got the idea of constructing an innovative truck that they say is "twice as big, one-third more efficient, and safer than the competition," according to Falstad’s report. By heating the water for fracking, fewer chemicals are needed, and the entire process is more efficient. The brothers sold some ranch land near Ingomar and used other “creative financing” to build the $2 million truck, and they are now marketing their services in the Bakken.

Whether their enterprise will be a financial windfall for the brothers remains to be seen, but this is the kind of entrepreneurial spirit -- seeing a need and coming up with an innovative way to meet it -- that is inspiring. We suspect that given the demand for services of every kind in the Bakken, they will indeed be successful. Small businesses like this are the lifeblood of a healthy economy. Concerns that employ a half-dozen people here and there add up quickly.

Meanwhile, we have a guest editorial in the Helena Independent-Record decrying the fact that the Montana Land Board voted 3-2 in 2010 to take another step toward finally developing the Otter Creek coal reserves. The lead author of the op-ed is Montana writer Phil Condon, and he was joined by 3 other Montana authors (including William Kittredge,) actress Margot Kidder, and the chair of a Livingston-based liberal women’s activist group.

The authors criticize Gov. Brian Schweitzer, Sec. State McCulloch, and State Auditor Monica Lindeen for “siding with Big Coal.” They state that Attorney General (and Democratic nominee for governor) Steve Bullock and Secretary of Public Instruction (sic) Denise Juneau oppose the permits, which indicates that there will be a change of attitude in the state house if Bullock is elected governor. While we have been critical of what has seemed like 8 years of foot-dragging on the part of Gov. Schweitzer, at least his rhetoric has often been there, favoring coal development of one sort or another. And in this case, his vote seems to be there as well.

I’m not familiar with most of the authors of this editorial, but have enjoyed a couple of William Kittredge’s books (even while failing to share some of his cynical attitudes toward the West in which he grew up.) As public intellectuals, their voice has a certain influence in Montana and they deserve to be heard out, as do all who express their opinions thoughtfully.

In my recent American Spectator piece, I made the observation that many Montanans of a certain bent seem determined to be stuck in the past (hard to believe that I as a pretty old-fashioned conservative am even writing that,) noting that AG Steve Bullock’s arguments in the Citizens United case seem appropriate for 1912, but not really for 2012. The Copper Kings are long dead and they aren’t coming back -- the alphabet soup reasons (EPA, OSHA, DEQ...) why the landscape has dramatically and permanently changed when it comes to “Big Mining” of any sort are well-known to everyone. And yet, predictably, the Condin piece leads off with the “Copper Kings.” Pretending not to know how irrelevant this argument is in 2012 amounts to an inexcusable rhetorical mendacity on the part of skilled and experienced writers who know exactly what they are doing with their words.

The authors’ concerns about contaminating water supplies used by ranchers find great sympathy here at MH. What one would rather see, however, is an attitude that seeks both to strictly protect water supplies while also encouraging mining and development. Instead, the real argument is found deeper into the piece -- coal mining’s purported effect on global warming. Take away the global warming argument, and the pressures to find a “win-win” situation are inescapable. Include it, and any rhetorical weapons -- relevant or not -- are justified in the fight to save the planet, whatever the cost to individuals or to local economies. The intended audience of this article really consists of just three people, just as many of those ranting articles in the media leading up to the Obamacare decision were really only being written for one reader. In the latter case, the pieces were being written for Chief Justice John Roberts. In the former, the piece is being written for the three Democrats who are perceived as favorable to proceeding with the coal leases -- only one would need to flip a vote to stop the development cold in its tracks. But the calculus is more complicated than that for Montana Democratic politicians.

Which brings us to the third article -- a Washington Post piece that centers on Montana’s Democratic Senators, Jon Tester and Max Baucus, and their support for the Keystone XL pipeline. Sen. Baucus has, according to this report, been particularly open to lobbying for the pipeline. Sen. Tester has been supportive but seems more muted. The financial politics of Senate races play a significant role here, one would think. Baucus, with his role as head of the powerful Finance Committee, has an endless stream of people and entities in the financial sector who are lining up to line his campaign's pockets. Baucus doesn’t have to worry about money -- he just needs to worry about votes, should Montanans (who overwhelmingly support the Keystone XL pipeline) decide they care more about energy development than about what Baucus’s seniority can do for the state.

Sen. Tester, on the other hand, is heavily dependent on the sort of bicoastal left-leaning fundraising that gave him an edge when he took on then Sen. Conrad Burns. At the same time, he also needs those votes. So Sen. Tester seems to be trying to navigate the shoals carefully -- give enough support to the Keystone pipeline to satisfy Montana voters, while being quiet enough about it so as not to dry up his out-of-state funding sources. Whether out-of-state fundraising is playing a role in AG Bullock’s decision not to support Otter Creek is an interesting question for which there is not, as yet, an obvious answer.

One thing would seem likely -- entrepreneurs like the Mysee brothers and their employees will likely cast their votes for those who at the very least are not hostile and obstructive when it comes to traditional energy development -- while Condin, Kittredge, Kidder, et al. could play havoc with Democrats’ ability to raise money from liberal sources should they continue to push the issue.

As the title above says, Montana Democratic politicians in high-dollar races are indeed between a frack and a hard place.

Don't like Obamacare? Fire Senator Jon Tester

Update: Read this piece at "The Fix" at the Washington Post, in which Sen. Tester is prominently featured. It seems that Sen. Tester is quite aware of the unpopularity of his vote for Obamacare and is trying carefully to thread the needle.

________

It's Wednesday, and time for a little Montana politics to celebrate Independence Day.

There is a lot to dislike about the recent Supreme Court ruling upholding the constitutionality of Obamacare, and since this is a blog that sticks to Montana politics, the urge to wax overly eloquent will be resisted. A couple of things stand out, however:

First, one is liable to get whiplash from following liberal opinion about the Supreme Court. Prior to the ruling, the left was preparing to discount the very legitimacy of the Court -- thinking it was going to rule against the constitutionality of Obamacare. Now, they are back to having the Supreme Court as bosom buddies, and the once-hated Chief Justice Roberts is now an exceedingly wise rock star -- Confucius meets Bono. Go figure.

On a related point, one notices that the left is accusing the right of being whiners and crybabies. Some expressions of outrage have perhaps been unseemly, but how would the left be acting right now had Roberts voted the other way? We got a pretty good preview from the full-court press bombarding the Court from Democrats and the mainstream media prior to the decision. Chief Justice Roberts was about to experience his own high-tech lynching had he decided otherwise, and he knew it.

But really, that isn't the proper analogy, is it? No, the proper analogy would be this: imagine that Justice Roberts voted exactly as he did, but that Justice Sotomayor had a last-minute change of heart, voting with Scalia, Thomas, Alito, and Kennedy.

That's the real analogy. Think about it -- has there ever been a single major case in which a justice appointed by a Democratic President has broken ranks and cast a deciding vote with a conservative bloc on a hot-button issue? Once? Ever? I’ve been Court-watching for decades and can't think of an example. Were it ever to happen, the wrath from the left against that traitorous Justice would make current conservative hand-wringing pale by comparison. For if there is one thing we know, it is this: Republican-appointed Justices break ranks, evolve, whatever... Democratic appointees never do. Democrats know exactly what they are getting in their Supreme Court picks -- Republicans just have to hope.

George Will , Charles Krauthammer, et al, are wrong that Chief Justice Roberts somehow slyly stole a march on the left by voting as he did (you know, limiting the commerce clause, giving the political fervor to Romney rather than Obama, neutralizing liberal claims of a politicized court, gaining cover for future groundbreaking decisions, yada, yada...) One can't blame them for looking for a silver lining, but it is a joke to consider this as anything but a disaster for traditional conceptions of what the Constitution is supposed to do -- namely to limit the power and reach of the federal government. Roberts has instead given the federal government a roadmap for doing basically anything it wants to do -- just incorporate a tax into anything you want to do, and you'll have his vote and that of the 4 liberal Justices. (Unless he plans to go into even greater contortions next time to undo his thinking.)

Let's be generous to Chief Justice Roberts and assume that he is playing at a high-level chess game, of which this move is 6 steps ahead on a long-term strategy. If so, Roberts is trying to be too clever by half, and it won't work. Leaving aside the fact that his legal contortions are underwhelming, he is forgetting the real point to being a Supreme Court Justice: to protect and defend the Constitution. He didn't do that, and let's not pretend that he did, even if we can come up with some theoretical short-term advantages to be gained from all of this.

The true silver lining, such as it is, is this (and here, we return at long last to Montana politics): the Supreme Court didn't mandate Obamacare. Hence this decision in no way ranks with the worst Supreme Court decisions of all time -- this ruling doesn't create law out of whole cloth in the manner of many earlier Court decisions, but rather allowed a law passed by Congress and signed by the President to stand.

Which means that the law can be (and must be) repealed and/or gutted by the same democratic process. Chief Justice Roberts said, in effect, "you elected these jokers, you get to clean up the mess or live with the consequences." For Montanans, that means a number of things:

1. Montana needs to do its part in retaking control of the U.S. Senate, firing Sen. Tester, who voted for this monstrosity and would be a reliable vote to uphold it. He would be a vote against conservative judges and justices or for liberal ones (depending on the outcome of the Presidential election.) There are a number of paths to taking control of the Senate, but most involve Congressman Rehberg winning this race. We just need to get it done.

2. We need to elect Steve Daines as Montana's U.S. Congresman. While control of the House is not in immediate jeopardy, every hand is needed on deck to keep the GOP majority a comfortable one with plenty of breathing room. He will vote to repeal Obamacare, and his opponent would vote to keep it.

3. We need to elect Rick Hill as governor. States will have some discretion in implementing provisions of Obamacare, and we need someone who will stand strong with a conservative Republican legislature. We know from the fact that AG Steve Bullock refused to participate in the lawsuit against Obamacare that he supports it. We just don't need any more of that in the governor's office.

4. We need to elect Tim Fox as Montana Attorney General. Republicans and conservative-leaning independents in this state have for too long had a tendency to treat the AG office as a "gimme" for the Democrats, who always want it more badly than we do. There may not be more lawsuits challenging this or that aspect of Obamacare (and other items of federal overreach,) but if they do happen, I want Montana's AG being a part of it. (Living mentally in the 19th century and pretending that the Copper Kings are still running Montana doesn't count.)

In short, we just have to win this fall, here in Montana and all across the country. Elections have consequences.

Workers' compensation costs -- another factor in slowing oil development in Montana's portion of the Bakken

It's Monday, and time for more musings on the Bakken and Montana's energy development.

If there is a lesson in North Dakota's oil development (besides that it is good to have the epicenter of a major oil play within the borders of one's state,) it is that there is no substitute for a long-term plan for promoting a business-friendly climate. If a state does that, it won't much matter what the particular opportunities that arise might be -- there will be a chance to be a player. As we have noted before, we have heard from Montanans who don't want grubby things like oil and coal development -- they want sexy stuff like Microsoft and dot-coms.

Which then suggests the question of why Microsoft and Amazon have been building and expanding operations in North Dakota rather Montana.

There are doubtless any number of reasons (closer access to large Midwestern population centers, perhaps.) But unquestionably North Dakota did, in the 1990s, set out to create a more business friendly climate.

Today we're going to look at just one factor -- workers' compensation costs. Those who were following the news during the last legislative session probably know that one of the big accomplishments of the GOP-controlled Montana legislature was to strike a deal with Gov. Schweitzer and the Democrats to lower workers' compensation costs.

Was there a real problem? Let's look at a beautiful table of data provided by the state of Oregon that examined (in 2010, prior to the Montana reforms) workers' compensation costs on a state-by-state basis. The Gazette piece linked to above generously referred to Montana's workers' compensation costs as being "among the most expensive in the country." As a glance at the Oregon data shows, this was being too kind. Montana had, at that time, the ignominy of being the most expensive in the country. Numero Uno. Absolute worst. Trial lawyer's delight.

To put it in perspective, the fifth worst in the country was California -- and Montana was a whopping 24% more expensive than the Golden State.

Which state was the least expensive in the country? Take a wild stab -- you know you want to...

North Dakota was number 51 -- less expensive than 49 states plus the District of Columbia. (What happened to the other 7 states, we don't exactly know.) Montana's workers' compensation costs were a staggering 233% higher than North Dakota's in 2010.

The deal that Republicans were able to extract from Gov. Schweitzer lowered costs to businesses by 20%. Which dropped Montana from 1st on the bad-boy list down to... wait for it... an effective tie for 4th with California! If our calculations are correct, we are now only 160% more expensive than North Dakota (and 48% more expensive than Wyoming.) Glad we straightened all of that out.

It is not necessary for Montana, we hasten to add, to try to be tied with North Dakota as the least expensive in the country. Being in the middle of the pack would be a good initial goal. That would mean an additional 23% cut in workers' compensation premium rates. When a state is playing catch-up, however, one has to do even better than average, meaning that further cuts beyond that 23% would be needed. To be fair, lawmakers predicted that the 2011 law would save 20% in the first year and perhaps 40% or more thereafter. The problem is that such predictions are often significantly off. The question, therefore, is what the legislature is prepared to do to make sure that reasonable targets are actually met.

Workers' compensation is just one factor involved in any company -- oil-related or not -- that is considering doing business in Montana, and we will be examining more of them as time goes by. It is a big one, however. Montana has a long ways to go in demonstrating that a desire for business development in Montana is genuine. Taking firm action to drop us comfortably below the median in workers' compensation costs would be one way of helping to lay the foundation.

There should no reason that this can't continue to be a bipartisan effort, as it was in the last legislative session, but we fear that pressures from Big Labor and Montana's trial lawyers will make that increasingly difficult. These sorts of reforms may require a Gov. Rick Hill working closely with a GOP legislature if we are to have any realistic chance of enacting them.